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UPDATE (Philippines): Replacement of a prosecutor required; complaint filed against a judge for grave abuse, violation of code of conduct

November 21, 2006

[NOTICE: The AHRC have developed a new automatic letter-sending system using the "button" below. However, in this appeal, we could not include e-mail addresses of some of the Philippine authorities. We encourage you to send your appeal letters via fax or post to those people. Fax numbers and postal addresses of the Philippine authorities are attached below with this appeal. Thank you.]

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Update on Urgent Appeal

21 November 2006

[RE: UA-72-2005: PHILIPPINES: Prosecutor's inaction to file murder charges against military officers who killed two people; UP-130-2006: PHILIPPINES: Court judge delays issuance of arrest warrants to military men charged with murder]
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UP-211-2006: PHILIPPINES: Replacement of a prosecutor required; complaint filed against a judge for grave abuse, violation of code of conduct

PHILIPPINES: Extra-judicial killings; failure of the justice system; alleged violation of Code of Conduct by a member of the judiciary; delays in adjudication of cases
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Dear friends,

The Asian Human Rights Commission (AHRC) writes to inform you regarding a serious development in the case of a couple killed in Tagum City. On September 26, 2006, charges of homicide had been filed against a military sergeant and his 31 men for their alleged involvement in the killing of Bacar Japalali and his wife Carmen on September 8, 2004 (please see our previous appeal on this case: UA-72-2005). While the victim's relatives acknowledged the filing of charges, they are shocked to learn that the City Prosecutor Francisco Rivero had been deputized to handle the case. It was prosecutor Rivero who earlier exonerated the respondents on the same case for 'insufficient proof'.

It can be recalled that on December 17, 2004, City Prosecutor Rivero submitted his resolution to the Office of the Ombudsman for Military and Other Law Enforcement Office (MOLEO) exonerating respondents Sergeant Serafin Jerry Napoles and his 31 men. In his resolution, he declared that the respondents did not commit any abuse in the killing of the Japalali couple. Rivero's resolution was submitted to the MOLEO for their appropriate actions and recommendation whether or not a charged can be filed in court.

But nine months later, on September 21, 2005, Prosecutor Beda Epres, Graft Investigation and Prosecution Officer II of the Ombudsman, reversed the resolution of prosecutor Rivero and recommended the filing of murder charges against the respondents. Prosecutor Epres found “probable cause” to charge the respondents in court for murder (For details please see our previous appeal: UP-130-2006). On May 11, however, the charges of murder was reduced to homicide after Regional Trial Court (RTC) Judge Justino Aventurado, the judge formerly handling the case, issued a directive to the prosecution panel to amend the complaint of murder into homicide. The prosecution then sent Judge Aventurado's directive to the Ombudsman for their comment, which was also upheld by the Ombudsman.

According to a report from Task Force Detainees of the Philippines (TFDP-Mindanao), the Ombudsman issued an order on August 16 deputizing to city prosecutor Rivero to stand as a public prosecutor in the case. The amended complaint of homicide had been filed against the respondents before the prosecutor's office on September 26. On October 27, it is learned that Regional Trial Court Judge (RTC) Danilo Belo of Tagum City had already assumed jurisdiction of hearing the case after it was raffled to which branch the case be tried. This occurring after Judge Aventurado inhibits himself from hearing the case following a motion filed by respondent Sergeant Napoles on September 15 before the Public Attorneys Office (PAO) demanding him to inhibit from the case.

The charge of homicide is a lesser charge than that of murder which was earlier recommended by the Ombudsman. It cannot be determined, however, as to what are the motives of respondent Sergeant Napoles for asking Judge Aventurado to inhibit from hearing the case although the latter's earlier directive to reduced the charged was to their favour. However, there are observations from a reliable source that Judge Aventurado and Sergeant Napoles are alleged to have attempted to connive with each other.  Also, it is alleged that Sergeant Napole's petition to the judge to inhibit could be “drama” to clear him from his wrong doings.

In his motion, Sergeant Napoles cited the order issued by Judge Aventurado last May 11 directing the prosecution to amend the charge filed against them from murder to homicide. Judge Justino Aventurado was quoted as saying as grounds after he inhibits: “wherefore, to free any party of worries and apprehensions of impartiality or bias on our part, this court hereby inhibits itself from further acting on these cases. Let the records hereof be returned to the Clerk of Court for re-raffling”.

Prior to inhibiting himself from the case, Judge Aventurado had been accused of wrong doings by the relatives of murdered victims. In a sworn statement issued by Hadji Hamid Japalali, brother of murdered victim Bacar Japalali, he alleged that Judge Aventurado was suggesting that “they are willing to pay” reportedly in exchange of dropping the charges against them. It was Hadji Hamid Japalali's statement and other documentary evidence that were used in filing the complaint against Judge Aventurado on August 26 with the office of the Supreme Court.

The separate complaints for grave abuse of discretion, for violation of section 6 of the Rule 112 of the Revised Rules of Court and for violation of Code of Judicial Conduct were filed against Judge Aventurado even though he no longer hears the case. Under the Judicial Code of conduct, judges are required to dispose their duties with impartiality and promptness.

Once again, even though the charge was already filed before the RTC, Branch 31, the court has yet to issue an arrest warrant against the respondents. The charges that were filed had criminal case Nos. 14958 and 14959 for homicide. A bail bond of Php 40,000.00 (US$ 804) was recommended by the court for the temporary release of each of the accused once they are served with arrest warrants and are arrested. The further delay on the part of the court in the issuance of arrests warrant is contrary to Section 6 (a) of Rule 112 of the Rules of Court, which provides: “By the Regional Trial Court. - Upon the filing of information, the Regional Trial Court may issue a warrant for the arrest of the accused.”

SUGGESTED ACTION:
Please write letters to concerned authorities requesting their intervention, in particular the replacement of City Prosecutor Francisco Rivero and the immediate issuance by the Regional Trial Court (RTC) of arrest warrants against the respondents. Also, the authorities must ensure that the complaint against Judge Justino Aventurado is thoroughly investigated by an independent body.

To support this appeal, please click:

Sample letter:

Dear ____________,

PHILIPPINES: Replacement of a prosecutor required; complaint filed against a judge for grave abuse, violation of code of conduct

I am writing to raise my deep concern regarding the progress in the case of a couple allegedly killed by military men in Tagum City on September 8, 2004. The victims were Bacar Japalali and his wife Carmen. The case filed by the murdered victim's relatives against the alleged perpetrators is pending before the Regional Trial Court (RTC), Branch 31, in the same city.

According to the information I have received, charges of homicide have already been filed against Sergeant Serafin Jerry Napoles and his 31 men. The Office of the Ombudsman for the Military and Other Law Enforcement Office (MOLEO) on August 16 has already recommended the filing of homicide charges against them in court. On September 26, the respondents were formally indicted in court.

While I appreciate the filing of charges against the respondents after over two years of investigations since the couple's killing took place, I am deeply concerned of the serious development in the progress of the case. One is the appointment by the Ombudsman for City Prosecutor Francisco Rivero to handle the case and the further delay in the issuance of an arrest warrant on the respondents.

While I acknowledge the authority of the Ombudsman to appoint City Prosecutor Rivero, I am deeply concerned that his appointment may not have been thoroughly reviewed by the Ombudsman. As you are aware, in the December 2004 resolution by prosecutor Rivero on this case, he has already exonerated the respondents of any accountability into the couple's brutal death for “insufficient proof”. Had the Ombudsman not reversed prosecutor Rivero's resolution on September 21, 2005, the respondents would not have been charged in court.

I protest the appointment of City Prosecutor Rivera given these circumstances as it undermines the credibility, reputation and probability of effective prosecution of this case in court. I therefore urge you to consider the immediate replacement of prosecutor Rivero. This is very essential in maintaining the trust and confidence between the prosecutor and his clients--in this case the families of the dead.

On the other hand, I also urge you to use your authority to ensure that the RTC, Branch 31, issues arrest warrants against the respondents without delay in accordance with the Rules of Court and the Speedy Trial Act (RA 8493). I am deeply concerned about these further delays that the court is committing and that the families of the dead have had to suffer further as a result of this inaction and obvious setback. I strongly believe that promptness by the court in dealing this case is very essential in upholding Rule of Law.

I likewise urge you to ensure that the victim's complaint for the grave abuse of discretion, for violation of section 6 of the Rule 112 of the Revised Rules of Court and for violation of Code of Judicial Conduct against Judge Justino Aventurado is acted upon without further delay. The concerned office, in particular the Supreme Court, must ensure promptness in resolving this complaint. This is very essential in restoring the credibility and integrity of the members of the judiciary and judicial practice. If there is a need that he is imposed with appropriate sanctions after due process, it must be done so.

I trust that you will take immediate action on this case.

Yours sincerely,


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PLEASE SEND YOUR LETTERS TO:

1. Judge Justino Aventurado
Presiding Judge
Regional Trial Court (RTC), Branch 2
Tagum City
PHILIPPINES
Tel: +63 84 2181430

2. Judge Danilo Belo
Presiding Judge
Regional Trial Court (RTC), Branch 31
Tagum City
PHILIPPINES
Tel: +63 84 2173850

3. Justice Presbitero Velasco, Jr.
Court Administrator
3rd Flr., New Supreme Court Bldg.,
Annex, Padre Faura St., Ermita,
1000 Manila
PHILIPPINES
Tel: +63 2 5225090 to 94
Telefax: +63 2 526 8129
Email: pio@supremecourt.gov.ph 

4. Mr. Christopher Lock
Deputy Court Administrator for Mindanao
Office of the Court Administrator
Supreme Court of the Philippines
New Supreme Court Building Annex Padre Faura St.,
Ermita,
1000 Manila
PHILIPPINES

5. Mr. Raul Gonzalez
Secretary
Department of Justice
DOJ Bldg., Padre Faura
1004 Manila
PHILIPPINES
Fax: +63 2 521 9548
Tel: +63 2 521 8344
Email: soj@doj.gov.ph  

6. Mr. Orlando Casimiro
Deputy Ombudsman
Office of the Deputy Ombudsman
for the Military and Other Law Enforcement Offices
3rd Floor, Ombudsman Bldg., Agham Road, Diliman (1104)
Quezon City
PHILIPPINES
Tel: +632 926 9032
Fax: +63 2 926 8747
Email: omb1@ombudsman.gov.ph       

7. Mr. Philip Alston
Special Rapporteur on Extra-judicial, Summary, or Arbitrary Executions
Attn: Lydie Ventre
Room 3-016
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9155
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR
EXECUTIONS)

8. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Attn: Sonia Cronin
Room: 3-060
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9160
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR
INDEPENDENCE JUDGES & LAWYERS)


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)


Document Type :
Urgent Appeal Update
Document ID :
UP-211-2006
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.